Is it Public Law, or Public Suggestion?

by Greg Walcher on October 22, 2016

A couple weeks ago I observed an odd committee hearing, in which U.S. senators questioned executive branch officials about the extent of their legal authority. Senators’ views ranged from “I think they have overstepped their bounds” to “I think they are well within their purview.” Most said, “This is not what Congress intended,” while one argued, “The law is sufficiently vague to justify that interpretation” — as if vagueness is a desirable goal.

Senate hearingThe hearing was on a new proposal from the U.S. Fish and Wildlife Service, affecting how the agency plans to regulate private activity on private land where endangered species are present.

The Endangered Species Act is known as Public Law 93-205, not Public Suggestion 93-205. The law recognizes that normal activities on private land (farming, ranching, mining, drilling, logging, manufacturing, power generation, and others) might unavoidably harm listed species in the ordinary course of business — not reducing the entire species, but possibly killing a few individual plants or animals. So the law allows permits for “incidental take” of species, as long as there is reasonable mitigation. That seemingly reasonable concept has been the subject of innumerable lawsuits and hundreds of pages of regulations and court orders. What exactly constitutes reasonable mitigation?

Landowners are expected at least to try to minimize their impacts, and rectify the damage when possible. Generally, that means replacing lost habitat. Both sides seem to agree that the law requires the agency to approve “take” permit applications if “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking.” That has been the understanding for more than 40 years.

Now the Fish and Wildlife Service wants to re-interpret that common-sense provision to address “cumulative” impacts. That could mean an individual landowner might not be required simply to mitigate his own damage, but also that of other owners whose activities are completely unrelated, and over which the new applicant has no control. Some activity contributing to this “cumulative” impact may have occurred decades ago, so the new interpretation gives a pass to landowners who caused environmental harm earlier. The new standard would not just require mitigation, but a “net benefit” to the species. Thus, mitigating your own action isn’t enough. You must also help recover the species as a whole, shifting that burden off the government and onto individual landowners for the first time.

Incongruously, much of the Senate hearing centered on the new rule’s impact not on endangered species, but on climate change. Once again battle lines were drawn between those who worry about man-made global warming and those who do not. Reasonable people disagree on that mega-issue, but most agree that solving a global issue is a global responsibility. It is not really a fair measure of whether a particular farmer’s irrigation practices may be allowed to disturb a particular field mouse (an actual interpretation of the law that threatened Colorado agriculture a few years ago).

For me, however, the most glaring issue at hand was never even raised in the hearing. Who decides whether to implement policies that could upend founding principles, kill jobs, and profoundly alter the nation’s economy? It was embarrassing to watch United States Senators quizzing mid-level bureaucrats about what the law says, and whether they have the legal authority claimed. If the Congress that writes the law is unclear about what it says, who is supposed to figure it out? Check the Constitution. The U.S. Fish and Wildlife Service is not mentioned there — the U.S. Senate is.

Nevertheless, Senators who think the new rule is an overreach of power were reduced to asking that the agency “take their concerns into consideration before going forward” with a final decision. Senators’ opinions are marginally interesting, but the final decision belongs to a bureau chief.

I know reining in the bureaucracy is not easy. I worked in the Senate for a decade, so I understand the filibuster and other partisan tactics that complicate the process. It was intended that way, to protect the public against rash laws passed in the heat of the moment. Today that has become an excuse for Congress not acting. In fact, it is a handy political cover behind which members can hide. Like most Americans, I am weary of elected officials shrugging off criticism by blaming agencies they cannot control. If such decisions are to be made entirely by bureau chiefs, perhaps we should be electing them, as we do senators. Or do we really intend that Constitutionally enacted laws are mere suggestions?

A version of this column originally appeared in the Grand Junction Daily Sentinel October 14, 2016.

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